Hampton v. Lee, 5425
| Decision Date | 06 March 1930 |
| Docket Number | 5425 |
| Citation | 287 P. 205,49 Idaho 22 |
| Parties | C. T. HAMPTON and EMMA HAMPTON, Appellants, v. N.H. LEE and B. F. BUFFINGTON, Respondents |
| Court | Idaho Supreme Court |
APPEAL AND ERROR-CONTESTED MOTION-SUFFICIENCY OF RECORD ON APPEAL.
1. Where neither copy of plaintiffs' motion to strike from cost bill certain items nor any certificate of trial judge indicating what papers were used on hearing of motion was part of record, as required respectively by C. S., sec. 7164 and supreme court rule 21, plaintiffs' appeal from order sustaining motion in part only would be dismissed.
2. In suit for damages, costs may be allowed successful defendant notwithstanding amount involved falls below $100, since restriction of statute refers solely to costs of party seeking recovery.
APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.
Motion to dismiss appeal. Appeal dismissed.
Appeal dismissed. Costs to respondents.
Turner K. Hackman, for Appellants.
James R. Bothwell and W. Orr Chapman, for Respondents.
Plaintiffs- appellants, Hamptons, sued defendants-respondents, Lee and Buffington, for damages arising from the removal of certain manure from plaintiffs' premises. Upon verdict duly returned, judgment was made and entered that "Plaintiffs recover nothing from the defendants, and that defendants do have and recover their costs, etc." Plaintiffs moved to strike from the cost bill certain items including one of $ 108 in favor of the witness Duncan, alleging that the latter charge was unnecessary and unreasonable in amount, had not been actually incurred, and that Duncan was not a material witness. The court sustained the motion except as to the last item, and from the ensuing order plaintiffs appealed.
In the record there is neither a copy of the motion nor any certificate of the trial judge indicating what papers were used on the hearing, as is required respectively by C. S sec. 7164, and rule 21 of this court. Respondents have moved to dismiss the appeal, urging among other grounds appellants' failure to comply with said rule 21. The motion is well taken. It may be said in passing that there is no merit in plaintiffs' appeal. They contend that under the statutes costs cannot be allowed in a suit for damages when the amount involved falls below $ 100. This...
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...rule: Muncey v. Security Ins. Co., 42 Idaho 782, 247 P. 785; Brooks v. Lewiston Business College, 48 Idaho 71, 282 P. 378; Hampton v. Lee, 49 Idaho 22, 287 P. 205. J. Givens, C. J., and Budge and Morgan, JJ., concur. Ailshie, J., did not sit at the hearing nor participate in the opinion. OP......
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